118 P. 499 | Idaho | 1911
This is an action brought by the appellant, who was plaintiff, to restrain the respondent, who was defendant, from diverting water from the lands of appellant and from an order made and entered therein overruling appellant’s motion for a new trial.
The appellant in her amended complaint alleges that she and her grantors and predecessors in interest, for more than ten years prior to the time of the commencement of this action, were the owners, in the possession of, and entitled to the possession of, the tract of land described in said complaint, and the right to use for the irrigation of the same the entire flow of the waters of a certain spring called “Little Wild Horse Spring” or “Pipe Spring,’’-and also to two certain
In his answer the respondent denies that appellant owns said land or the right to the use of said water; denies that she is the owner or appropriator of said Little Wild Horse or Pipe Spring, or the said artesian wells; denies that she ever used said water for the irrigation of said land or for stock or domestic .purposes; admits that he constructed on appellant’s said land dams and devices for the diversion of said water and diverted the same from appellant’s land to and upon his own land, and seeks to justify himself for so doing under and by virtue of a permit issued from the state engineer’s office to one T. J. Woods, bearing the No. 2477; admits his intention to continue said diversion. Respondent also filed a cross-complaint, setting up his ownership of certain lands situated about a half mile from said spring, and alleges that he is the owner of a certain permit from the state engineer’s office, it being the one issued to said Woods, authorizing him to enter upon appellant’s premises to construct works for the diversion of water therefrom, the same bearing date of December 29, 1906. All of the allegations of the cross-complaint were denied.
Upon the issues thus framed the case was tried to the court without a jury and resulted in a judgment in favor of the respondent.
The following facts appear from the record: In the year 1896, A. D. Norton, who was then engaged in the business of cattle raising in the vicinity of said spring and who was run
From these facts the district court found that the appellant entered said land as a desert land claim in the month of September, 1905, and that said spring was located on said land; that on December 29, 1906, the state engineer issued a water permit to Woods covering the water from said spring; that said water permit and the rights thereunder were duly transferred to the respondent, and that the respondent proceeded under said permit and diverted and used said waters; that no use was made of said water or any portion thereof by the appellant prior to the issuance of said water permit, and as a conclusion of law found that she was not entitled to said water and that the respondent was entitled thereto.
The evidence is uncontradicted on the point that A. D. Norton drilled or made the first artesian well in or near said spring and increased the flow thereof, and that he used the water for a beneficial purpose for watering his stock for a number of years; that the administrator thereafter sold whatever rights he had to the appellant; that she entered the land on which said spring and wells were situated and procured title thereto from the government of the United States; that she had plowed at least seventeen acres on said land and cropped the same and irrigated it with the water from said spring and artesian wells. From those facts it is clear that she was the first appropriator of said water and is entitled to it. It would appear to us that the trial court has given too much weight to the engineer’s “permit” to Woods, and virtually held that his permit gave a better right to the respondent than the actual diversion and application of the water did to the appellant, regardless of the fact that Woods had failed to
In Neilson v. Parker, 19 Ida. 727, 115 Pac. 488, this court held that the state engineer has no right, power or authority to interfere with vested rights or to grant a permit for the appropriation and diversion of the water of a stream where the same has already been diverted and applied to a beneficial use, and that where one actually diverts the water of a stream and applies the same to a beneficial use, although he has never applied to the state engineer for a permit to do so and has never procured either a permit or a license from the state engineer, still his right is superior and paramount to any right that a subsequent appropriator can procure, even though the latter secure a permit from the state engineer to appropriate and divert the water of the stream.
It appears that the appellant was the owner of the land on which said spring and artesian wells were constructed; that her predecessor constructed one of said wells and she paid $250' therefor, and that she constructed the other; that the one she constructed was more than 100 feet deep and she paid $2.50 a foot for the construction of it; that she had the title in fee to said land at the time the respondent purchased all the rights that Woods had under said permit, and in order to conduct the water from said spring and wells the respondent committed a trespass in going upon the appellant’s lands without her consent to construct diversion works. The facts and evidence are all with the appellant.
The judgment of the trial court must be reversed, and it is so ordered, and the cause remanded for a new trial in accordance with the views expressed in this opinion. Costs are awarded in favor of appellant.